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Recitals now-a-days are kept to a minimum, but there are exceptional circumstances here which I think need some brief explanation. I also suggest that it is desirable to show that the Order is intended to be merely temporary.
Note the reference to the Emergency Powers (Defence) Act, 1939. See also Clause 2(1). It may be necessary for Defence Regulations to be amended.
Clause 2(1). I have drafted on the assumption that the further Order in Council applying the Emergency Powers (Defence) (No. 2) Act, 1940 to the Colonies wolf have been made before this Order goes to the Privy Council.
I may, however, not have quoted the title correctly, and if the three Orders are given a collective title (which I suggest would be convenient) the drafting will be simplified.
Clause 2(2). I am not sure whether the powers of the Governor or other officers should be made exercisle also by the Secretary of State or some other authority or whether they should be transferred. The great difficulty is that we cannot tell the Governor what we have done so that if there are concurrent powers they may conflict. If the powers are transferred the Governor may possibly exercise powers which he no longer possesses.
Clause 2(3). It seems clear that a simple Order on the lines suggested by Mr. Gent will not do, as modifications of enactments are necessary in connection with the transfer of powers, It might be desirable, for the sake of appearances, to limit the modifications to those which are necessary in connection with such transfer, and that would suffice so far as the modifications set out in Part II of the Schedule to the draft are concerned. Occasionally, however, such a restriction might be found to be inconvenient I suggest, therefore, that although an Order giving the Secretary of State unrestricted power to amend the laws of Hong Kong may be questionable, it would be best for him to possess it. I have, however, endeavoured to draft the Order so as to give an indication that the power is not intended to be exercised too widely.
Schedule. This is, of course, tentative. There may be other enactments which we or the Crown Agents can say now require adaptation and those I have suggested may not be satisfactory.
It might be suggested that there is no advantage in setting out some adaptations in the Order and giving the Secretary of State power to add others, and that it would be simpler to give the Secretary of State a free hand and omit the Schedule. It appears to me however, preferable for the Order itself to give some indication of the manner in which it is intended to modify existing laws.
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